THE PUBLIC’S RIGHT TO SPEAK AT A PUBLIC HEARING

Before any property is condemned in New York, Article 2 of the Eminent Domain Procedure Law must be complied with.  Article 2 of New York’s Eminent Domain Procedure Law sets forth the prescribed way that property is to be acquired by eminent domain.  EDPL Section 201 provides that there must be public hearings for both state and nonstate takings at a location reasonably proximate to the property.  It is essential that notice be given by publication and by personal service or certified mail, return receipt requested, to each assessment record billing owner of his or her attorney of record, as required by Section 202.

The hearing is not only about the project, but it also is to serve to give information concerning the impact of the taking on the claimant’s remaining land, and alert the condemnors to factors that might make the acquisition of the subject property far more expensive than originally contemplated.  A condemnor may not know that the property is actually used in conjunction with another non-adjacent piece or that zoning has changed.  All condemnors must take findings on specific issues.  Section 204 provides that:

(B) The condemnor, in its determination and findings, shall specify, but shall not be limited to the following:

• The public use, benefit or purpose to be served by the proposed public project;
• The approximate location for the proposed public project and the reasons for the selection of that location;
• The general effect of the proposed project on the environment and residents of the locality;
• Such other factors as it considers relevant.

The law requires that any person in attendance shall be given a reasonable opportunity to present an oral or written statement and to submit other documents concerning the proposed public project.  EDPL Section 203.

There are two points to be made.  One, anyone in attendance must be given a reasonable opportunity to make an oral or written statement and to submit documents regarding the public purpose.  The second is that a reasonable opportunity to speak means tat the public may not be limited in their opportunity.  Many condemnors arbitrarily limit speakers to a few minutes.  This is not a reasonable opportunity to speak.

Nor can a condemnor by-pass the public hearing requirement by claiming that the proposed taking is exempt from the public hearing requirement.

As the Second Department held in Matter of Zutt v State of New York, 99AD3d 85, 97 (2012), any claim of exemption will undergo rigorous review.  If found to be an abuse of discretion, the condemnation will be struck as arbitrary and capricious and indicative of bad faith.